United States v. Lloyd

UNITED STATES, v. STEPHANIE LLOYD, Defendant.

10-CR-0622 (JS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 17, 2020

MEMORANDUM & ORDER

APPEARANCES:

For Government:

Lara Treinis Gatz, Esq.

Charles N. Rose, Esq.

United States Attorney's Office

Eastern District of New York

610 Federal Plaza

Central Islip, New York 11722

For Defendant:

Jan Alison Rostal, Esq.

Federal Defenders of New York, Inc.

One Pierrepont Plaza, 16^th Floor

Brooklyn, New York 11201

SEYBERT, District Judge:

Defendant Stephanie Lloyd ("Defendant") was convicted, after a jury trial, of: conspiracy to rob the Wyandanch Post office (the "Post Office"), where she had been employed, see 18 U.S.C. § 371 ("Count One"); robbery of the Post Office, see id. §§ 2114 and 2 ("Count Two"); and possession of a firearm during a crime of violence, see id. § 924(c) ("Count Three"). Judge Arthur D. Spatt¹ sentenced Defendant in November 2014 to time served as to Counts One and Two, and to sixty (60) months' imprisonment as to Count Three, as well as supervised release. Defendant has sinceconcluded her term of incarceration and she is presently on supervised release.

Before the Court are two motions by Defendant pursuant to 28 U.S.C. § 2255 to vacate her Count Three conviction. (See Mot. to Vacate, D.E. 447; 2d Mot. to Vacate, D.E. 449.) Also before the Court, is a subsequently filed letter motion seeking a stay pending the resolution in the Second Circuit of United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), a case that has since been resolved. (See Ltr. Mot., D.E. 539.) In her § 2255 motions, Defendant argues that the Court should vacate her Count Three conviction because: (1) her convictions under Counts One and Two--the conspiracy and the substantive robbery--do not qualify as predicate "crimes of violence" for her § 924(c) conviction under Count Three; and (2) the Court improperly instructed the jury on Count Two, in that it gave an aiding and abetting instruction that could not have resulted in a conviction, because although she helped plan the robbery, she did not participate, and the robbers did not tell her when the robbery would occur. She relies on Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), and Rosemond v. United States, 572 U.S. 65, 134 S. Ct. 1420, 188 L. Ed. 2d 248 (2014).

The Government contends that these claims lack merit because both predicate crimes are crimes of violence under § 924(c), and the Court properly instructed the jury on alternativetheories of liability based on aiding and abetting and on Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), the latter of which permitted convicting Defendant even without her participating in the robbery itself. Defendant has since argued that the recent Supreme Court holding in United States v. Davis, 139 S. Ct. 2319, 204 L. Ed. 2d 757 (2019) also undermines her Count Three conviction.

For the following reasons, the Court denies Defendant's motions, declines to issue a certificate of appealability, and closes the case. Although the Supreme Court in Davis invalidated § 924(c)'s residual clause, and Defendant establishes constitutional error in that the Court may have relied on the residual clause in sentencing her, she fails to show prejudice, because one of those predicate felonies, post office robbery, is a crime of violence under § 924(c)(3)(A)'s elements clause. In addition, Rosemond had been decided at the time of Defendant's sentencing, and her failure to invoke it on her direct appeal means that she has procedurally defaulted on the claim. She offers no excuse for this default. In any event, the Court properly instructed the jury on a Pinkerton theory, and a conviction under Pinkerton does not convert her conviction under Count Two into one under the residual clause.

BACKGROUND

I. The Indictment and Trial

The Court assumes familiarity with the background of this case. However, by way of a review, on December 9, 2010, Defendant was charged, along with her co-conspirators Sharod Williams ("Williams") and Travis Walker ("Walker"), with Hobbs Act Conspiracy to Commit Robbery, Robbery, and Brandishing of a Firearm During a Crime of Violence, in connection with the robbery of the Post Office. United States v. Lloyd, 947 F. Supp. 2d 259, 262 (E.D.N.Y. 2013). Defendant was later charged in May 2012, by Superseding Indictment, along with coconspirator Laurell Lewis, with the above-noted Counts One, Two, and Three. (Superseding Indictment, D.E. 198.)

The criminal proceedings came before Judge Spatt, who conducted separate trials for the various defendants. At Defendant's trial, the Court heard testimony from, inter alia, Defendant, Walker, and a postal inspector. Evidence adduced at the trial established that Defendant worked at the Post Office. (Tr. 626:8-12.)² She had told Walker, with whom she had shared a periodic romantic relationship (Tr. 625:5-13; 630:1-9; 732:21-7:33:22), that she wished for someone to rob the Post Office with her present so that she could collect workers compensation (Tr. 638:7-639:7).

Over several months, Defendant and Walker spoke about the robbery, with Defendant answering any questions Walker had about planning the robbery. (Tr. 640:8-645:20; 771; 917.) The robbery ultimately occurred in October 2009, on a day when Defendant was not at the Post Office, preventing her from collecting workers compensation. (Tr. 673:1-12.) Lloyd had insisted that the robbery take place around Christmas, when there would be more money in the Post Office's safe, and she had not been told that the robbery would be done months earlier. (Tr. 647:4-9; 722:3-723:23; 758:3-759:7.)

II. Jury Instructions and Verdict

The Court provided the following instructions to the jury as to Count Two. First, the Court instructed that "[c]ount 2 charges [D]efendant with aiding and abetting the robbery of the United States Postal Service on or about October 30th, 2009." (Tr. 1364"1-4.) Second, the Court read aloud the portion of the Superseding Indictment that had charged Defendant with Count Two, and then read aloud the underlying statute, 18 U.S.C. § 2114(a). (Tr. 1376:10-1378:4.) Third, the Court said that the jury needed to find that the Government had proven the following elements beyond a reasonable doubt:

[f]irst, that the defendant, Stephanie Lloyd, aided and abetted in the robbery of the Wyandanch post office; Second, that the, quote, robbery of the Wyandanch post office was by force, violence or intimidation; Third, that the robbery was carried out by the use of a dangerous weapon, putting in jeopardy the life of the person or persons having control of the money; and Fourth, that the perpetrators of the robbery acted knowingly and intentionally.

(Tr. 1377:19-1378:4.) Fourth, the Court explained to the jury the elements of the substantive crime of robbery and on the law of aiding and abetting. (Tr. 1378:10-1382:13.) Fifth, the Court instructed the jury on a Pinkerton theory of liability as to Counts Two and Three. (Tr. 1386:24-1389:16.)

On May 18, 2012, the jury returned a verdict finding Defendant guilty on all three counts listed in the Superseding Indictment. (Verdict Sheet, D.E. 224-5.)

III. Post-Verdict Motions, Sentencing, and Defendant's Direct Appeal

Following her conviction, Defendant moved for a judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33. (2012 Mot., D.E. 251.) The Court denied those motions in May 2013. United States v. Lloyd, 947 F. Supp. 2d 259, 269 (E.D.N.Y. 2013). In denying those motions, the Court held, inter alia, that the jury rationally held Defendant criminally liable for Counts Two and Three under a Pinkerton theory. Id. at 266.

The case proceeded to sentencing. On November 13, 2014, the Court sentenced Defendant to time served on Counts One and Two, and 60 months' imprisonment on Count Three, with three years' supervised release. (J., D.E. 393; Sent'g Tr. 405.)

Defendant filed a notice of appeal. (2014 Appeal, D.E. 395.) On appeal, Defendant challenged both her conviction and the Court's denial of her post-judgment motions. On December 17, 2015, the Second Circuit issued a mandate that affirmed Defendant's conviction and sentence and dismissed her appeal. United States v. Lloyd, 631 F. App'x 45, 50 (2d Cir. 2015) (summary order). Defendant did not petition the United States Supreme Court for a writ of certiorari.

IV. Post-Conviction Proceedings

On June 24, 2016, Defendant, through counsel, moved to vacate her conviction under § 2255. (See Mot. to Vacate.) She raised a single claim, that her convictions under Counts One and Two did not qualify as § 924(c) crime of violence, under either the elements clause or the residual clause, thus undermining her Count Three conviction. (Id. at 4.) Defendant cited Johnson in support of this claim. (Id.)

While that motion was pending, Defendant filed a pro se § 2255 motion. (See, 2d Mot. to Vacate.) Defendant alleged that her conviction violated her rights under the Fifth, Sixth, and Fourteenth Amendments. (Id. at 2.) Defendant also asserted thatthe Court erred in its jury instructions as to Count Two, because, pursuant to Rosemond, she "can not bear responsibility for a robbery she had no knowledge of." (Id. at 3.) She elaborated in contending that while she helped to plan the robbery, that her co-conspirators did not inform her about the change in the date of the post office robbery, or about who would be participating in the robbery. (Id. at 3-4.) Accordingly, she argued, she did not have a guilty mind regarding the robbery. (Id. at 4.) Defendant also reiterated her Johnson claim from the previously filed § 2255 motion. (Id. at 4-6.)

In August 2017, the Court issued an order to show cause directing the Government to respond to Defendant's motions. (Aug. 2017 Order, D.E. 489.) The Government opposed the § 2255 motions on August 30, 2017. (Gov't Opp., D.E. 490.) Defendant did not file a reply.

In January 2018, Defendant asked for a stay...